The Constitutional Court struck down the ban on marriage equality on Dec. 5, 2017, and also extended the nation's same-sex registered-partnership law to opposite-sex couples. The ruling takes effect Jan. 1, 2019, if the government doesn't implement it sooner.

Taiwan

The Constitutional Court declared the ban on same-sex marriage unconstitutional on May 24, 2017, and gave the Legislative Yuan no more than two years to change laws. If it doesn't, marriage equality arrives automatically.

Opponents are attempting to force public votes on the definition of marriage and on creating civil unions for same-sex couples instead of letting them marry. If opponents collect 281,745 valid voter signatures, per question, by the end of August, then on Nov. 24 voters will be asked: "Do you agree with using means other than the marriage regulations in the Civil Code to protect the rights of two people of the same gender to build a permanent life together?" and "Do you agree that the marriage regulations in the Civil Code should define marriage as between a man and a woman?"

If a voter referendum passes that conflicts with a Constitutional Court ruling, the law created by the referendum would have to be challenged in a new court case. Meanwhile, marriage-equality activists are urging the Legislative Yuan to stop delaying implementation of the 2017 Constitutional Court ruling and immediately bring in marriage equality by adding same-sex couples to the marriage regulations in the Civil Code.

Sixteen Americas nations

On Jan. 9, 2018, the Inter-American Court of Human Rights ordered Costa Rica to let same-sex couples marry. The ruling was immediately binding on Costa Rica — though weddings have been delayed as the executive branch battles the bureaucracy — and is binding precedent for 19 other signatories to the American Convention on Human Rights that accept the court's jurisdiction: Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname and Uruguay. Marriage equality is already in place in Argentina, Brazil, Colombia and Uruguay, and Mexico has marriage equality in many states.

"All countries are obligated to apply the Convention as the court applies it, so it is binding on all as precedent," said Hunter T. Carter, a partner at Arent Fox who has tried a case in the Inter-American Court and represents Chilean same-sex couples in the Inter-American system.

Mexican states (there are 31) are a hotspot of the marriage-equality movement. To date, 13 states have achived full marriage equality via three different pathways. My article is here.

French places

All 11 overseas departments and collectivities — see the France entry above — have marriage equality. The links above show a same-sex couple marrying in nine of the jurisdictions.

British places

See above for the lengthy list of British places with marriage equality. Northern Ireland, Sark (part of Guernsey) and the overseas territories Anguilla, British Virgin Islands, Cayman Islands, Montserrat, and Turks and Caicos Islands do not have marriage equality.

Bermuda

Marriage equality arrived in Bermuda on May 5, 2017, via a court ruling. On Feb. 7, 2018, the United Kingdom's governor in the British overseas territory, John Rankin, signed a bill passed by Parliament that repealed marriage equality and replaced it with domestic partnerships that included all the benefits of marriage. Then, on Feb. 28, 2018, while the partnership law was awaiting formalities that would bring it into force, the government announced that it would delay the law from taking effect until June 1. The timing is notable. On Feb. 16, 2018, former Bermuda Attorney-General Mark Pettingill filed suit on behalf of a gay man who wants to get married, arguing that Parliament's repeal of marriage equality was unconstitutional. The case will be heard in May and could see a ruling before June 1, potentially undoing Bermuda's repeal of marriage equality before it takes effect. In early April, a second lawsuit was filed by OUTBermuda with backing from cruise lines owner Carnival Corporation.

The only other place ever to repeal marriage equality was California, where voters halted it in 2008 and federal courts reinstated it in 2013. Voters in the U.S. state of Maine once blocked a marriage-equality law from coming into force, in 2009, and then reversed themselves and allowed marriage equality, in 2012. Voters in Slovenia blocked a marriage-equality law from coming into force in 2015.

Ireland

On May 22, 2015, Ireland became the first nation to legalize same-sex marriage by popular vote. Irish people amended their constitution to bring in marriage equality by a landslide margin of 62.07% to 37.93%.

The United States Minor Outlying Islands — Baker Island, Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef, Midway Atoll, Palmyra Atoll and Wake Island in the Pacific Ocean, and Navassa Island in the Carribean Sea — would have marriage equality. Their only population nowadays is a small number of temporarily assigned scientists and military personnel.

Antarctica

Marriage equality exists in much of Antarctica, given the nations that claim portions of the continent as national territory: Argentina, Australia, Chile, France, New Zealand, Norway, United Kingdom.

On the high seas

Same-sex couples can marry at sea on Celebrity Cruises ships, courtesy of the Malta Parliament's passage of marriage equality in July 2017. For the moment, weddings also are legally possible on Princess, P&O and Cunard ships that are registered in Bermuda. See the Bermuda section above for the latest on the island's marriage-equality quagmire.

U.S. Indian tribes

There are 567 of them, and they are not covered by the June 26, 2015, U.S. Supreme Court ruling that legalized same-sex marriage nationwide. At least 22 tribes, listed below, have legalized same-sex marriage to date. A number of others follow the marriage law of the state in which they are located, so same-sex marriage is legal within the tribe without any additional tribal action.

Worldwide marriage equality watch list

This is a companion article to my article Marriage Equality Around the World. Here we track the nations and other jurisdictions most likely to see marriage equality next. Last update: May 18, 2018.

Austria

The Constitutional Court struck down the ban on marriage equality on Dec. 5, 2017, and also extended the nation's same-sex registered-partnership law to opposite-sex couples. The ruling takes effect Jan. 1, 2019, if the government doesn't implement it sooner.

Bermuda

Marriage equality arrived in Bermuda on May 5, 2017, via a court ruling. On Feb. 7, 2018, the United Kingdom's governor in the British overseas territory, John Rankin, signed a bill passed by Parliament that repealed marriage equality and replaced it with domestic partnerships that included all the benefits of marriage. Then, on Feb. 28, 2018, while the partnership law was awaiting formalities that would bring it into force, the government announced that it would delay the law from taking effect until June 1. The timing is notable. On Feb. 16, 2018, former Bermuda Attorney-General Mark Pettingill filed suit on behalf of a gay man who wants to get married, arguing that Parliament's repeal of marriage equality was unconstitutional. The case will be heard in May and could see a ruling before June 1, potentially undoing Bermuda's repeal of marriage equality before it takes effect. In early April, a second lawsuit was filed by OUTBermuda with backing from cruise lines owner Carnival Corporation.

The only other place ever to repeal marriage equality was California, where voters halted it in 2008 and federal courts reinstated it in 2013. Voters in the U.S. state of Maine once blocked a marriage-equality law from coming into force, in 2009, and then reversed themselves and allowed marriage equality, in 2012. Voters in Slovenia blocked a marriage-equality law from coming into force in 2015.

Cayman Islands

A couple is suing the Cayman Islands, a British overseas territory in the Caribbean Sea, after being denied a marriage license because they are women, Cayman News Service reported April 18, 2018. "The lack of [legal recognition of same-sex couples] in the Cayman Islands is a clear and unequivocal breach of the European Convention on Human Rights, which is binding on the Cayman Islands government," said fiancée Chantelle Day. For lists of British jurisdictions with and without marriage equality, see my article Marriage Equality Around the World.

Chile

A marriage-equality bill is pending in Congress, where it has majority support in both houses — and on April 30, 2018, the administration of new Chilean President Sebastián Piñera signed off on the project. Chile is required to bring in marriage equality to comply with a 2016 settlement at the Inter-American Commission on Human Rights. The nation is also bound by the January 2018 Inter-American Court of Human Rights marriage-equality ruling, which created binding precedent for 16 nations without marriage equality that are signatories to the American Convention on Human Rights. See the "Sixteen Americas nations" item in the "Final rulings issued" section of my article Marriage Equality Around the World.

Costa Rica

On Jan. 9, 2018, the Inter-American Court of Human Rights ordered Costa Rica to let same-sex couples marry. The ruling was immediately binding on Costa Rica but bureaucrats at the nation's Superior Notary Council have prevented marriage equality from starting.

Six marriage-equality cases are pending in the Constitutional Chamber of Costa Rica's Supreme Court of Justice — four of them filed since the Inter-American Court ruling. The cases include actions of unconstitutionality and amparos — individuals' demands for protection from discriminatory government action — against the nation's Family Code, which prohibits marriage equality; against the National Directorate of Notaries and the Superior Notary Council, for blocking couples' marriages after the Inter-American Court ruling; against the national government, for not complying with the Inter-American Court ruling; and against the Constitutional Chamber justices themselves, for not having ruled on older cases.

Costa Rica's presidential election, held April 1, 2018, morphed into a referendum on marriage equality after an evangelical Christian, Fabricio Alvarado, catapulted into first place in the first round (besting 12 other candidates) by making resistance to the Inter-American Court ruling the centerpiece of his campaign. Polls showed the runoff between the top two vote-getters to be too close to call, but on election day, marriage-equality supporter Carlos Alvarado won in a landslide — 61% to 39%.

Cuba is reworking its constitution, starting in July, and National Assembly member Mariela Castro, daughter of former President Raúl Castro, will push to replace the man-woman definition of marriage with marriage equality.

Ecuador

A marriage-equality case is pending before Ecuador's Constitutional Court and the ruling is, by law, overdue. In the wake of the January 2018 Inter-American Court of Human Rights marriage-equality ruling, if the Ecuador decision doesn't come soon, plaintiffs say they will advance to the Inter-American system. On Jan. 15, 2018, the Ecuadorian Federation of LGBTI Organizations called on President Lenín Moreno to recognize marriage equality immediately.

Honduras

In May 2018, the Supreme Court of Justice accepted a lawsuit filed by activists seeking to enforce the January 2018 Inter-American Court of Human Rights ruling that instructed 20 Americas nations to bring in marriage equality and modern gender-identity laws. The lawsuit aims to strike down an article of the Constitution that bans marriage equality and recognition of same-sex couples' foreign marriages and civil unions. It also targets a Family Code article that extends marriage rights to opposite-sex de facto unions but not same-sex unions, and the Law on the National Registry of Persons, which effectively prevents transgender people from changing their name.

Northern Ireland

Northern Ireland, which is part of the United Kingdom, doesn't have a government because the Democratic Unionist Party and Sinn Féin power-sharing agreement collapsed in January 2017 and hasn't been restored due to disagreement about marriage equality, local language rights and other issues. It is possible any resolution to the impasse could see introduction of equal marriage in the last major area of the United Kingdom that doesn't have it. An attempt to bring marriage equality to Northern Ireland via the UK Parliament in London was blocked May 11 but could be reconsidered in October. A failed attempt to achieve marriage equality via the courts is on appeal.

Panama

Lawyer Iván Chanis Barahona, head of Panama's marriage-equality group, La Fundación Iguales Panamá, says the January 2018 Inter-American Court of Human Rights marriage-equality ruling is "totally binding" on Panama. "Case closed." A Panama Supreme Court of Justice draft opinion rejecting marriage equality that had been circulating at the court was withdrawn on Feb. 15, 2018, because of the Inter-American Court ruling. On Jan. 16, 2018, Panamanian Vice President Isabel De Saint Malo said the Inter-American court ruling is indeed binding ("vinculante") on Panama.

Paraguay

In the wake of the January 2018 marriage-equality ruling by the Inter-American Court of Human Rights, activist group SomosGay announced two new lawsuits at the nation's Supreme Court of Justice. As a first step, the suits seek recognition of two marriages of same-sex couples who married abroad.

Peru

In the wake of the Inter-American Court of Human Rights' January 2018 marriage-equality ruling, the president of the Supreme Court of Justice, Duberlí Rodríguez, said, "Peru is part of the Inter-American system, and the organism that defends and protects these rights is called the Inter-American Court of Human Rights and ... if the court has taken a decision, I believe that all the parties are called to respect that decision." In March 2018, a court ruling that had forced the national registry to register veteran activist Óscar Ugarteche's Mexican marriage to his husband was overturned on a technicality related to the timing of the filing of his lawsuit. He is appealing that ruling. A marriage-equality bill was introduced in Congress in 2017 and is awaiting action by the Justice Committee.

Switzerland is taking its time moving from same-sex civil partnership to marriage equality. The issue is next scheduled to be considered by parliament in mid-2019. The only nations in Western Europe without marriage equality are Andorra, Austria (coming soon), Italy, Liechtenstein, Monaco, San Marino, Switzerland, Vatican City, and the UK's Northern Ireland.

Taiwan

The Constitutional Court declared the ban on same-sex marriage unconstitutional on May 24, 2017, and gave the Legislative Yuan no more than two years to change laws. If it doesn't, marriage equality arrives automatically.

Opponents are attempting to force public votes on the definition of marriage and on creating civil unions for same-sex couples instead of letting them marry. If opponents collect 281,745 valid voter signatures, per question, by the end of August, then on Nov. 24 voters will be asked: "Do you agree with using means other than the marriage regulations in the Civil Code to protect the rights of two people of the same gender to build a permanent life together?" and "Do you agree that the marriage regulations in the Civil Code should define marriage as between a man and a woman?"

If a voter referendum passes that conflicts with a Constitutional Court ruling, the law created by the referendum would have to be challenged in a new court case. Meanwhile, marriage-equality activists are urging the Legislative Yuan to stop delaying implementation of the 2017 Constitutional Court ruling and immediately bring in marriage equality by adding same-sex couples to the marriage regulations in the Civil Code.

Venezuela

Two marriage-equality lawsuits are in their final stage in the Constitutional Chamber of the Supreme Tribunal of Justice, reports Venezuela Igualitaria. The group said it expects rulings soon and expects to win. One lawsuit targets a Civil Code article that says, "Marriage cannot be contracted except between one man and one woman." The other lawsuit alleges a "legislative omission" resulting from the National Assembly's failure to take up the Equal Civil Marriage Bill (Proyecto de Ley de Matrimonio Civil Igualitario). "2018 looks to be a year with favorable judicial decisions on our ... cases for the rights of LGBTI people," Venezuela Igualitaria said.

Thursday, May 03, 2018

Mexico's wild ride to marriage equality

Mexico is a current hotspot of the marriage-equality movement. Here's where things stand as of May 3, 2018.

As was the case in the U.S., Mexico's legalization of same-sex marriage is proceeding state by state but unlike in the U.S., there is no possibility for a single ruling from the highest court that will overturn same-sex marriage bans nationwide. Even the Supreme Court of Justice of the Nation (SCJN) has to go state by state.

Mexico has 31 states plus the federal entity Mexico City. Marriage equality has arrived in Mexico City and in 13 states — via three different routes: Legislative legalization, Supreme Court rulings, and state administrative decisions to stop enforcing their ban:

Same-sex marriage also became possible everywhere else in Mexico following a June 3, 2015, ruling by the SCJN's First Chamber, but only if a couple jumps through some hoops. The ruling declared that any law that defines marriage as "between a man and a woman" is unconstitutional (and therefore ultimately doomed) — and the declaration of unconstitutionality means that when any same-sex couple (or group of couples) goes to a federal judge and asks for an injunction (amparo) against the local civil registry allowing them to marry, the judge must grant it. The process works and couples use it, but it can take many weeks and cost up to US$2,000 to pay a lawyer for help.

As Mexico's marriage-equality movement continues, more states should see the freedom to marry without couples having to get an amparo. In each state, it would happen one of four ways:

1. The state congress will legalize same-sex marriage.

2. The state government will decide to stop enforcing its ban on same-sex marriage. (While this gets the job done, it could be reversed by a new administration.)

3. The Supreme Court will kill a state's ban via the route that happened in Jalisco, Chiapas and Puebla states.

Here's how that works. When any law is passed in Mexico and takes effect, there is a 30-day window for certain governmental entities to challenge the law with an "action of unconstitutionality" filed with the full Supreme Court. What Jalisco, Chiapas and Puebla did is make some changes to their marriage laws, unrelated to marriage equality, and the revised paragraphs also included existing man-woman language. The revisions qualified as "new" laws that could be challenged during the 30 days after they took effect. The National Human Rights Commission filed actions of unconstitutionality against the man-woman language and the SCJN struck down the three states' bans in separate rulings in 2016 and 2017. The states likely were unaware they were setting up their same-sex-marriage bans for strikedown.

Remarkably, given that this process led to marriage equality in three states that weren't ready to pass marriage equality, the state congress in Nuevo León did the same thing in January 2018 and the National Human Rights Commission pounced again. The Supreme Court accepted the case and the Nuevo León ban's days are numbered.

4. A project of the organization México Igualitario — which brought about the 2015 SCJN ruling that all bans on marriage equality are unconstitutional and the requirement that all judges nationwide that must approve all marriage-equality amparos — is likely to succeed state by state. Here's how the process works:

When one of Mexico's 256 second-level federal appeals courts or the First Chamber of the federal Supreme Court rules that an existing law is unconstitutional in five separate amparo rulings in a row, and uses identical language in each ruling, that creates "jurisprudence" against that law — and jurisprudence can then be used to force a state congress to eliminate the law — in this case, a ban on same-sex marriage.

It's an unusual process, for sure, but it's ongoing nationwide and several states are well on the way to arriving at the magic number of five identical rulings in a row from a higher-level court. When a state gets there, the Supreme Court can move directly against a state's legislature.

And that's Mexico's march toward marriage equality in a nutshell. The key thing to remember is that the 2015 ruling by the federal Supreme Court's First Chamber created jurisprudence binding on all courts that any ban on same-sex marriage is unconstitutional. That's why state legislatures are legalizing same-sex marriage, why some state and city governments have stopped enforcing bans, and why federal politicians, including Mexico's president, have supported marriage equality by attempting to change federal laws and the federal Constitution. Because all bans eventually will be struck down anyway.

The jurisprudence says: "Marriage. The law of any federative entity that, on the one hand, considers that the end of it [marriage] is procreation and/or that defines it [marriage] as that which is celebrated between a man and a woman, is unconstitutional." ("Matrimonio. La ley de cualquier entidad federativa que, por un lado, considere que la finalidad de aquél es la procreación y/o que lo defina como el que se celebra entre un hombre y una mujer, es inconstitucional.")

PEÑA NIETO: On May 17, 2016, Mexican President Enrique Peña Nieto proposed amending Mexico's Constitution to make marriage equality the law of the land and sent his proposal to Congress. On Nov. 9, 2016, the proposal was rejected by the Chamber of Deputies' Committee on Constitutional Matters, and died. The vote was 19-8 with 1 abstention. 'Yes' votes came from the PRD and Morena party deputies and from two PRI deputies, one of whom is openly gay. 'No' votes came from the PAN, PRI, PVEM, PANAL and PES parties.

It is unclear whether marriage equality could have been imposed on the states via the pathway Peña Nieta proposed because marriage regulation is a matter of state, not federal, law. In the courts, though, it's a different story. State bans on same-sex marriage have been found unconstitutional because Article 1 of Mexico's Constitution bans "all discrimination motivated by ... sexual preferences."

(Amending Mexico's Constitution requires a two-thirds vote by members present the day of the vote in the Chamber of Deputies and the Senate of the Republic, followed by ratification by the state congresses of at least 16 of Mexico's 31 states. Mexico City doesn't get to vote on ratification.)

OPPONENTS ORGANIZE: Peña Nieto's move likewise stirred unprecedented organizing by opponents of same-sex marriage, who staged marches and rallies across the country on Sept. 10, 2016 — some of them very big — and a large march in Mexico City on Sept. 24, 2016. Opponents also collected signatures and submitted citizens' initiatives to the Senate and the Chamber of Deputies to amend the Constitution to restrict marriage to opposite-sex couples. Congress has taken no action on the initiatives.

ADOPTION: On the eve of the Mexico City march, the Supreme Court issued jurisprudence binding on all courts securing adoption rights for same-sex couples nationwide. It says: "ADOPTION. The best interest of the minor is based on the suitability of the adopters, within which are irrelevant the type of family into which [the minor] will be integrated, as well as the sexual orientation or civil status of [the adopters]." ("Adopción. El interés superior del menor de edad se basa en la idoneidad de los adoptantes, dentro de la cual son irrelevantes el tipo de familia al que aquél será integrado, así como la orientación sexual o el estado civil de éstos.")

These two states prohibit discrimination based on sexual orientation but not gender identity in employment, housing and public accommodations: New York, Wisconsin. (The New York State Division of Human Rights promulgated regulations that took effect Jan. 20, 2016, prohibiting discrimination based on gender identity, transgender status or gender dysphoria in employment, housing and public accommodations. Courts have not ruled on whether the department was correct in determining that existing protections based on sex automatically prohibit discrimination based on gender identity.)

Utah prohibits discrimination based on sexual orientation and gender identity in employment and housing but not in public accommodations.

On April 4, 2017, the U.S. Court of Appeals for the 7th Circuit in Chicago ruled 8-3 that the 1964 Civil Rights Act's ban on employment discrimination based on sex is also a ban on employment discrimination based on sexual orientation. The 7th Circuit covers Illinois, Indiana and Wisconsin, so employment discrimination based on sexual orientation is now banned in Indiana.

On Feb. 26, 2018, the U.S. Court of Appeals for the 2nd Circuit in New York ruled 10-3 that the 1964 Civil Rights Act's ban on employment discrimination based on sex is also a ban on employment discrimination based on sexual orientation. The 2nd Circuit covers Connecticut, New York and Vermont, states that themselves already ban job discrimination based on sexual orientation, so the ruling did not add any states to this list, but it did add to the jurisprudence that is likely to see review by the U.S. Supreme Court.

In the arena of federal appeals courts and gender-identity employment protections, there are 12 states in the 1st, 6th, 9th and 11th federal circuits that have statewide gender-identity job protections as a result of federal appeals court rulings that the 1964 Civil Rights Act's ban on employment discrimination based on sex is also a ban on employment discrimination based on gender identity. The states that have these protections via the courts but not in their own state laws are: Alabama, Alaska, Arizona, Florida, Georgia, Idaho, Kentucky, Montana, Michigan, New Hampshire, Ohio and Tennessee. The 9th Circuit ruling also added the territory Northern Mariana Islands to the list of places with job protections based on gender identity.

In states with no sexual-orientation or gender-identity protections in employment, housing or public accommodations, it is common to find protections at the municipal level in large cities and university towns. Local nondiscrimination ordinances, however, sometimes do not have the teeth of state or federal laws.